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HomeMy WebLinkAboutCDC/2006-52 . 1 RESOLUTION NO. CDC/2006-52 2 3 4 5 6 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO EXECUTE THE REDEVELOPMENT PROJECT STUDY AND EXCLUSIVE RIGHT TO NEGOTIATE AGREEMENT ("AGREEMENT") WITH HOME DEPOT, INC. (NORTH ARDEN GUTHRIE - IVDA REDEVELOPMENT PROJECT AREA) 7 8 WHEREAS, the Agency owns certain property within the Inland Valley Development 9 Agency (IVDA) Redevelopment Project Area (the "Project Area") which together with the 10 privately owned property as generally depicted In Exhibit "A", attached to the Agreement, 11 comprises (the "Arden Guthrie Site"); and 12 WHEREAS, the Agency and the Developer are interested in exploring the development 13 feasibility of the Arden Guthrie Site so as to foster the community economic development goals 14 and objectives of the City of San Bernardino (the "City") as it relates to the redevelopment plan for 15 the Project Area; and 16 WHEREAS, the Developer is qualified to assist the Agency to undertake the development 17 feasibility for a coordinated and economically sustainable redevelopment project on the Arden 18 Guthrie Site, which will require specific study, evaluation and planning by the City and the 19 Agency, as applicable, of appropriate and feasible community redevelopment program alternatives; 20 and 21 WHEREAS, in accordance with the provisions of the California Environmental Quality Act 22 ("CEQA"), a Redevelopment Project Study and Exclusive Right to Negotiate Agreement (the 23 "Agreement") is exempt from the provisions of CEQA. 24 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY 25 OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS FOLLOWS: 26 Section 1. The Commuoity Development Commission ("Commission") hereby approves 27 the Agreement by and between the Agency and the Developer in the form as presented at the 28 P\Ag"rld..\Rewlutions\Re5olution,\2006\11.20.06 IlomeDepol.In c. CDC Reso.doc I CDCj2006-52 1 meeting of the Commission at which this Resolution is adopted and hereby authorizes the Executive 2 Director of the Agency to execute the Agreement on behalf of the Agency together with such 3 technical and conforming changes as recommended by the Executive Director and approved by the 4 Agency Counsel. 5 Section 2. 6 Section 3. 7 /II 8 /II 9 1/1 10 /II 11 /II 12 /II 13 /II 14 /II 15 /II 16 /II 17 1/1 18 /II 19 /II 20 1/1 21 /II 22 /II 23 1/1 24 /II 25 1/1 26 /II 27 1/1 28 The Commission hereby finds that the Agreement is exempt from CEQA. The Resolution shall become effective immediately upon its adoption. P.\AgendasIRe501utions\Resolut;ons\2006\1 1-20-06 Home Depol, loc. coe Reso,doc 2 1 2 3 4 5 6 CDC/2006-52 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO EXECUTE THE REDEVELOPMENT PROJECT STUDY AND EXCLUSIVE RIGHT TO NEGOTIATE AGREEMENT ("AGREEMENT") WITH HOME DEPOT, INC. (NORTH ARDEN GUTHRIE - IVDA REDEVELOPMENT PROJECT AREA) I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community Development Commission of the City of San Bernardino at a j oint regular 7 thereof, held on the 20th day of November ,2006, by the following vote to wit: 8 17 18 19 meeting Ayes Navs Abstain Absent x x --1L x --1L --1L 20 The foregoing resolution is hereby approved this 21st day of November 21 22 23 24 25 26 By: 27 28 ,2006. ~ Prick J. orris, C' n Co ty Development Commission of the City of San Bernardino Approved as to Form: Vr::ffi;~ Agen oun I P:\Agendas\ResaIUlions\Resolulion,\20D6\11-20-06 Home Dero!. Inc. CDC Reso.doc 3 " REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO REDEVELOPMENT PROJECT STUDY AND EXCLUSIVE RIGHT TO NEGOTIATE AGREEMENT (ARDEN GUTHRIE HOME DEPOT COMMERCIAL PROJECT) This Redevelopment Project Study and Exclusive Right to Negotiate Agreement is dated as of November 20, 2006 (this "Agreement"), and is entered into by and among Home Depot U.S.A., Inc., a Delaware corporation (the "Developer") and the Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic (the "Agency"). Developer intends to act in cooperation with Mr. Scott C. Beard on behalf of Gerald W. Beard Realty, Inc. and Mr. Mark Sandoval (collectively, both individuals are collectively referred to herein as the "Co-Developer"). Co-Developer is not a party to this Agreement nor is it an intended third party beneficiary under this Agreement. RECITALS A. The Agency desires to encourage and effectuate the redevelopment of certain real property located within the area commonly referred to as the North Arden Guthrie Area of the City of San Bernardino (the "City") and comprising approximately 16.5 acres, generally bounded by Highland Avenue, Arden Avenue, 20th Street and Guthrie Avenue (the "Arden Guthrie Site"), that is depicted on the "Study Area Map" attached hereto as Exhibit "A" which illustrates the "Arden Guthrie Site" for purposes of this Agreement; and B. The Arden Guthrie Site lies within the Redevelopment Project Area of the Inland Vallcy Devclopment Agency (the "Project Area"), and is subject to the Project Area's governing redevelopment plan (the "Redevelopment Plan") and its Rules for Owner Participation as adopted by the Inland Valley Development Agency ("IVDA"); and C. The City is the fee owner of those certain socccr fields that were improved with funds made available by the Agency (the "City Soccer Fields") consisting of approximately fifty-two (52) acres of improved land. The City Soccer Fields are located at the northeast comer of Pacific Street and Arden Avenue (as depicted on Exhibit "A" attached hereto), and are located adjacent to the Arden Guthrie Site; and D. The Developer intends to explore opportunities to assist the City in some financial manner to provide support to the City Soccer Fields whether through the payment of naming rights, providing sponsorship or such other means as the City and the Developer may agrec. Such provisions shall be negotiated by the Agency with the Developer and included within the Project DDA, as hereinafter defined; and E. The Developer and the Co-Developer intend to jointly develop the Arden Guthrie Site pursuant to a separate agreement by and between said Developer and Co-Developer. However, both this Agreement and the Project DDA, as hereinafter defined, shall include only the Developer as a party. The Co-Developer shall have no rights or remedies against the Agency under either this Agreement or the Project DDA; and 4833-1897-6257.1 I P:\Agendas\Agenda AllJchments\Agrmts-Amend 2006\ 11-20-06 Horne Ikp<lt _ Fillal Arden Guthrie ER~.d,," F. The Agency and private persons or entities are the fee owners of those certain parcels of real property consisting of approximately 16.5 acres, in the aggregate which taken together make up the Arden Guthrie Site. The Arden Guthrie Site is located at the southwest quadrant of the point of intersection of HigWand Avenue, Highway 30 and Arden A venue. For purposes of this Agreement, those parcels of the Arden Guthrie Site that are owned in fee by the Agency (together with portions of the Private Property [defined below] subsequently acquired by the Agency) shall collectively be referred to as the "Agency Property," and those parcels of the Arden Guthrie Site that are owned in fee by persons or entities other than the Agency shall collectively be referred to as the "Private Property"; and G. The area within the Study Area Map consists of the Arden Guthrie Site, which is generally underutilized, in poor physical condition, and contributes to the blight that has existed within the Project Area since the date of the adoption of the Redevelopment Plan to this date; and H. The project concept plan (defined herein as the "Project Concept Plan") involves the Arden Guthrie Site, and contemplates and proposes the purchase by the Developer from the Agency of the Agency Property. The Agency and the Developer will work closely together to determine if the most cost-efficient result will be obtained through a negotiated purchase of the Private Property by the Developer or the acquisition by the Agency. The Agency and the Developer will work together in good faith to acquire the Private Property. In the event that the cost of the acquisition of the Private Property makes proceeding with the project undesirable for either party, either party may terminate this Exclusive Right to Negotiate. These acquisitions would be for development by the Developer that would complement the build-out of the Project Concept Plan. The Developer will negotiate with the Agency for the Agency Property, if an Agreement is reached between Developer and Agency, it may be documented by a Project Disposition and Development Agreement (the "Project DDA"). The Project Concept Plan contemplates a commercial and retail center with a Home Depot store of approximately 139,000 square feet as the major anchor tenant and such other complimentary retail and commercial uses including sit- down restaurants; and 1. The Arden Guthrie Site is situated within the Project Area, a joint powers authority, which was formed pursuant to Health and Safety Code Sections 33492.10, et seq., as a local redevelopment authority under the federal military base reuse laws for the purpose of assisting in the conversion and civilian reuse of the former Norton Air Force Base and the elimination and prevention of blight affecting other lands within a three (3) mile radius of the boundaries of the former Norton Air Force Base; and J. The IVDA, the City and the Agency have entered into an agreement entitled the "2003 Redevelopment Cooperation Agreement," dated as of October 8, 2003 (the "Redevelopment Cooperation Agreement"), pursuant to which the IVDA has delegated to the Agency the right, power and authority to act for and on behalf of the IVDA for the purposes of exercising the redevelopment powers of the IVDA within a portion of the Project Area; and K. The Agency Implementation Area includes the Arden Guthrie Site and the Agency intends to initiate additional studies and proposals to address a number of issues of community concern in the Agency Implementation Area relating to the elimination and prevention of the spread of blight from the Agency Implementation Area; and L. The Agency is entering into this Agreement, without limitation, to facilitate the assembly of the Private Property with the Agency Property into developable parcels of land so as to foster the community economic development goals and objectives of the Agency and the City, including the 4833-1897-6257.1 2 1117/2007-11:16:55 AM elimination and the spreading of blight, as the same relates to the Project Area, and the Agency has designated the area to be included for such study purposes to be properties within the perimeters of the Arden Guthrie Site. The Developer has represented to the Agency as an inducement for the obtaining of this Agreement from the Agency, that, based upon the facts as presently known to the Developer, Developer intends to pay the greater of the appraised fair market value or $5,800,000 for the entire 16.5 acres that make up the Arden Guthrie Site, all subject to the final terms and conditions of the Project DDA, if approved by the Agency; and M. In connection with the preparation of the Project DDA and prior to consideration of the approval of such Project DDA, the Agency will prepare and circulate an initial study (the "Initial Study") in accordance with the California Environmental Quality Act of 1970, as amended ("CEQA"); and N. The Agency was instnnnental in receiving from the United States Department of Housing and Urban Development ("HUD") a proposed $7,500,000 HUD Section 108 Loan Contract (the "108 Loan") that will be used in part to acquire the remaining Private Property within the Arden Guthrie Site. The I 08 Loan will require the City and the Agency to pledge certain assets and funds as additional collateral for the I 08 Loan, and the I 08 Loan will further require any private party acting as the developer to enter into such agreements that will be subject to review and approval by HUD wherein such developer would enter into a binding and enforceable (i) covenant as to the minimum assessed valuation of the completed private development and (ii) operating covenant requiring the businesses to be located therein to remain in operation for a minimum number of years which obligation shall be secured in part with a letter of credit in form and content acceptable to HUD and such other satisfactory personal and/or corporate guaranties as may be required by HUD; and O. Based upon information furnished by the Developer to the Agency together with further investigations conducted by the Agency, the Developer is qualified to assist the Agency to undertake the study of and plans for a coordinated and economically sustainable redevelopment project in the Project Area, including the Arden Guthrie Site, which will require further specific study, evaluation and planning by the City and the Agency, as applicable, of appropriate and feasible community redevelopment program alternatives; and P. The Developer and the Agency believe it is appropriate for the Agency, in consultation with the Developer, to review by agency staff (the "Agency Staff') those studies, reports and investigations conducted by the Developer as the Project Concept Plan Study costs (collectively, the "Project Concept Plan Study Costs") as part of a program for the study of feasible redevelopment programs for the Arden Guthrie Site, subject to the terms and conditions as set forth below. NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND PROMISES SET FORTH HEREIN, THE DEVELOPER AND THE AGENCY HEREBY AGREE, AS FOLLOWS: I. The Nel!otiation Period and the Term of Al!reement: Refundable Deposit. a. The rights and duties of the parties established by this Agreement shall commence following the approval of this Agreement by the governing body of the Agency after such time as this Agreement has been fully executed by the parties within the period of time authorized in Section 18 (such date being the "Effective Date"). This Agreement will continue in effect until a date which is twenty-four (24) months from the Effective Date unless such date shall have been first extended as authorized under 4833-1897-6257.] 3 1/17/2007-11:16:55 AM Section I.c.(2) or this Agreement is othetwise tenninated as provided in Section I.b. or I.e. Such time period during which this Agreement shall be in effect (including any extensions of time approved by the Agency) is referred to as the "Negotiation Period." b. This Agreement may be terminated at any time if, in the Developer's sole and absolute discretion, the Agency is not making reasonable progress in acquiring the necessary property. c. This Agreement shall automatically terminate, without further notice or action, and be of no further force or effect twenty-four (24) months following the Effective Date, unless prior to that time: (I) the parties execute the Project DDA, as described below, which will include, without limitation, other relevant community redevelopment covenants acceptable to the Agency and such other terms and conditions mutually acceptable to the parties, in which case this Agreement shall terminate on the effective date of the Project DDA; or (2) the parties each agree to extend the term of this Agreement in writing to a specific date not later than six (6) months after the scheduled termination date, subject to the Executive Director of the Agency first making a finding through reasonable discretion that satisfactory progress is being made to complete the Project DDA as set forth in Section 3. d. This Agreement can be terminated prior to the twenty-four (24) months following the effective date only if: (I) the Executive Director of the Agency determines through the exercise of reasonable discretion that either 1) the Project Concept Plan and the other financial feasibility information, or 2) the business plan to be submitted by the Developer to the Executive Director of the Agency within ninety (90) days from the Effective Date of this Agreement as further provided in Section 3.e.(A) is not satisfactory to warrant the continuation of discussions for a Project DDA. If the Executive Director of the Agency makes this determination, the Executive Director of the Agency shall have the right to terminate this Agreement immediately upon (i) the facsimile transmission by the Executive Director of the Agency of written notice of termination to the Developer, or (ii) upon receipt of written notice of termination through other means from the Executive Director of the Agency to the Developer; or (2) a party terminates this Agreement as provided under Section I.b., 2.c., Section 20 or Section 21, as applicable. e. The Developer or its designee has delivered to the Agency a check in the amount of $58,000. This deposit shall be refunded to the Developer if the Agency is unable to purchase the land necessary for the Project. The attachment depicting the property which is necessary for the Project shall be maintained separately from this Agreement and held confidentially pursuant to California Goverrunent Code Section 6276.36. The Developer acknowledges that the payment of the $58,000 deposit shall be received by the Agency as partial consideration for the Agency having been precluded from offering the properties owned by the Agency and which are identified herein as the Agency Property to other prospective purchasers and developers. Such $58,000 deposit shall be applied towards the purchase price of the Agency Property as may be provided in the Project DDA if it is approved by the governing body of the Agency. 4833-]897-6257.1 4 1/17/2007-11:16:55 AM 2. Developer Acknowledl!ments. a. The Developer hereby acknowledges and agrees that no provision of this Agreement shall be deemed to be an offer by the Agency or an acceptance by the Agency of any offer or proposal from the Developer to convey any interest in the Agency Property or the Private Property to the Developer. Any studies relating to the Arden Guthrie Site, the Agency Property or the Private Property, and the Project Concept Plan that may hereafter be undertaken by the Developer, in its sole discretion, shall be the sole responsibility of the Developer and shall not be deemed to be undertaken for the benefit of the Agency or the City. b. The qualifications and identity of the Developer are of particular concern to the Agency. The Agency has relied on these qualifications and identity in entering into this Agreement with the Developer. During the term of this Agreement, no voluntary or involuntary successor-in-interest of the Developer shall acquire any right or power under this Agreement. The Developer shall not assign all or any part of this Agreement or any rights hereunder, without the prior written approval of the Executive Director of the Agency (for purposes hereof the term "Executive Director of the Agency" shall mean the "Executive Director of the Agency" or such other title for the person who is then acting as the chief executive staff official of the Agency, or hislber duly delegated representative), which approval shall not be unreasonably withheld, provided that the Developer can demonstrate to the reasonable satisfaction of the Executive Director of the Agency that the assignee has the financial capability and the experience necessary to develop the project to the same standard of quality that would have been undertaken by the Developer. Notwithstanding the foregoing, the Developer shall have the right to assign this Agreement and its rights hereunder to an entity, which controls, is controlled by or is under common control with the Developer, or its principals, members or affiliates. c. The Developer shall promptly notify the Agency in wntmg of any and all changes whatsoever in the identity of the business entities and individuals in control of the Developer, as well as any and all material changes in the interest or the degree of control of the Developer by any such party, of which information the Developer or any of its partners or officers have been notified or may otherwise have knowledge or information. Upon the occurrence of any material change in interest or control, whether voluntary or involuntary, in membership, ownership, management or control of the Developer (other than such changes occasioned by the death or incapacity of any individual) that has not been approved in writing by the Executive Director of the Agency, prior to or subsequent to such change (after the Developer has received reasonable notice and an opportunity to cure such change to the reasonable satisfaction of the Executive Director of the Agency), the Agency may tenninate this Agreement by serving written notice of such termination, referencing this Section, on the Developer. 3. Proiect Concept Plan Studv. a. From and after the Effective Date, the Developer shall initiate the preparation of a feasibility study for the redevelopment of the Project Concept Plan proposed by the Developer which shall include a preliminary fmancial feasibility study and a business plan relating to the Home Depot commercial center (the "Project Concept Plan Study"). As soon as practical following the Effective Date, the Developer shall retain the services of a firm or firms of community redevelopment planning, engineers, architects, fmancial consultants, land use planners and environmental consultants to produce all necessary reports, studies and environmental documentation and other investigations, surveys and reports appropriate in connection with the Project Concept Plan Study and the evaluation of the Project Concept Plan proposed by the Developer and for the processing of all entitlements required to be obtained from the 4833-]897-6257.] 5 1/17/2007-11:16:55 AM City together with the required environmental review and processing. All third party costs incurred by the Developer as part of the preparation of the Project Concept Plan Study shall be paid solely by the Developer in accordance with Section 4 of this Agreement. The Agency shall undertake compliance with all requirements of CEQA including the preparation of an initial study based upon the Project Description and Project Concept Plan provided by the Developer. The Developer shall aid the City in the identification of appropriate CEQA consultants and shall pay for the cost of those consultants. b. The Developer may modify the description of the Project Concept Plan at any time; provided, however, that substantial modifications of the Project Concept Plan shall: (i) be subject to the acceptance and approval of the Executive Director of the Agency which approval shall not be unreasonably withheld, conditioned or delayed; (ii) depending on the nature of such a modification, a suitable modification of the environmental and other elements of the Project Concept Plan Study as modified may also be indicated. The Agency and/or the Executive Director of the Agency may request that the Developer consider modifications to the description of the Project Concept Plan from time-to-time. The final form of each such modification shall be subject to the reasonable approval of the Executive Director of the Agency and the Developer. c. The Agency shall, on a best efforts basis during the course of the Project Concept Plan Study, consider the specific terms and conditions of redevelopment assistance which the Developer may propose to include in the Project DDA; provided, however, that the Agency reserves the sole and absolute discretion to accept, reject or modify any such proposed term or condition to the Project DDA and to approve or reject the Project DDA in its sole and absolute discretion. d. All third-party consultants, if any, retained and paid for by the Agency to review any study, report or document prepared by or on behalf of the Developer as part of the Project Concept Plan Study shall be subject to the sole control and direction of the Agency. The work product of any such person shall be the property of the Agency. The Agency shall have the right to use and republish such work product for any purpose subject to the reasonable consent of Developer. e. Subject to the terms and conditions of this Agreement, the Developer shall undertake an economic feasibility study of the Project Concept Plan as part of the Project Concept Plan Study consisting of the elements as set forth below: (A) preparation by the Developer in consultation with the Agency of a financial feasibility study or other similar analysis for the development of the Project Concept Plan on the Arden Guthrie Site, setting forth the plan for the acquisition of the Agency Property and the Private Property (or anyone of them) and the phasing of the Project Concept Plan development, if any, and an estimate of development costs, project income and a pro forma statement of Project Concept Plan capital return including, without limitation, the following: 4833-1897-6257.1 6 1117/2007-11:16:55 AM (I) fmal projections of debt and equity that will be required of the Developer to undertake the Project Concept Plan including construction and permanent financing of the private structures and infrastructure financing for all publicly owned facilities; and (2) fmal projection of a fmancial contribution to support the City Soccer Fields; and (3) final projections of public (City, State and Federal) fmancial assistance anticipated for the Project Concept Plan including source, dollar amount, timing of the necessity for such funds and the probable repayment sources; and (4) fmal projections of overall development costs, including private and public improvements, Project Concept Plan assessed values, revenues designated by sources and dollar amounts, transient occupancy taxes, sales and property taxes for the commercial development to be comprised of the Home Depot store and other retail and commercial to be complimentary to the uses anticipated within the commercial development; and (5) appropriate documentation or execution of the appropriate documents to enable the Agency to fulfill the requirements from HUD for the 108 Loan, including, but not limited to, the actual language to implement the various covenants of the Developer as may be required by HUD and the form, content and dollar amount of any letters of credit as may be required by HUD to be provided by the Developer. An initial draft of a document including the study elements identified in subparagraph (I) through (4) above shall be completed by the Developer and submitted to the Agency within one year following the Effective Date. Thereafter, provided that the Executive Director of the Agency has not terminated this Agreement due to the insufficiency or inadequacy of the Project Concept Plan as set forth in Section l.b.(3), the parties shall refine the draft document of the Project Concept Plan as submitted by the Developer in accordance with a schedule to be mutually agreed upon for the refinement of the work for such studies, including the content and scope thereof, to be mutually approved by the parties, which approval shall not be unreasonably withheld. (B) The Developer in consultation with the Agency shall prepare a proposed conceptual development plan for the Project Concept Plan, to include, without limitation: (I) proposed land use categories on a parcel-by-parcel basis, including proposed zoning and General Plan changes, if any, necessary to accommodate the Project Concept Plan to accommodate the intended commercial development on the Agency Property; and (2) proposed time schedule and cost estimates for the development and proposed public and private infrastructure upgrades, proposed publicly owned facilities, public improvements, public infrastructure and private development; and proposed financing plan identifying the timing of receipt by the Developer and the Agency, as applicable, of the financing sources for all private and public improvements proposed in the Project Concept Plan, by phase, if applicable; and (3) 4833-]897-6257.1 7 1117/2007-11 :16:55 AM (4) proposed terms and price for the acquisition of the Agency Property, if any, as may be deemed necessary for the Project Concept Plan which based upon representations made by the Developer to the Agency as an inducement to obtain this Agreement shall be equal to the greater of the appraised fair market value of the Agency Property or $5,800,000; and (5) proposed financing plan for the acquisition by the Developer and/or the Agency of any Private Property as necessary for the Project Concept Plan. The conceptual development plan for the Project Concept Plan as described above may be revised from time-la-time in accordance with a schedule of preparation and revisions as may be mutually approved by the parties. f. Within one hundred eighty (180) calendar days after the Effective Date, the Developer shall inform the Agency in writing whether, based on the information set forth in Section 3.e.(A), the Developer believes that the Project Concept Plan is feasible. Thereafter, the Developer and the Agency may proceed to negotiate the final form of an agreement, in which the specific terms for the redevelopment of the Arden Guthrie Site may be set forth on terms mutually acceptable to the parties as may be contained in the Project DDA subject to the fmal approval thereof by the parties each at their sole and absolute discretion. g. The Developer shall submit each of the items of information described in this Section to the Executive Director of the Agency within the time periods set forth above. Within fifteen (15) calendar days after receipt of any such information, the Executive Director of the Agency shall determine whether such information is satisfactory. If the specific item of information is unsatisfactory to the Executive Director of the Agency, he or she shall notify the Developer in writing of the reason or reasons that the information is unsatisfactory. If the Executive Director of the Agency does not make a determination regarding any item of information submitted by the Developer under this Section 3, within twenty (20) calendar days after receipt of such information by the Agency, the information as submitted by the Developer shall be deemed submitted in acceptable form to the Agency. The determinations to be made by the Executive Director of the Agency under this subsection shall in no manner bind or constitute the approval of the Agency regarding, without limitation, plans, specifications, engineering, architecture, uses, tenants, sale prices, rental rates, the Project Concept Plan or the Project DDA. h. On or before the expiration of the Negotiating Period and prior to the adoption of the Project DDA, the Developer shall submit a written proposal to the Agency setting forth the manner in which the Developer intends to provide some form of financial support or assistance for the City Soccer Fields. 4. Proiect ConceDt Plan Studv Costs. For the purposes of this Agreement, "Project Concept Plan Study Costs" shall mean and refer to the costs and expenses of third party consultants who are engaged by the Developer under written contract to undertake one or more elements of the Project Concept Plan Study including the environmental review and processing and the preparation of all required studies and reports in furtherance of the entitlements to be requested by the Developer from the City or the Agency. Project Concept Plan Study Costs shall include third party costs incurred by the Developer in connection with the preparation or submission of any information relating to the Project Concept Plan on which any element of the Project Concept Plan 4833-1897-6257.1 8 1/17/2007.11:16:55 AM Study may be based, including civil engineering expenses, traffic consultant fees, architectural fees, financial consultants, accounting fees and similar expenditure items. In addition to the Project Concept Plan Study Costs incurred and paid by the Developer, each party shall bear its own legal fees and costs and for consultants and service providers which such party engages, including, but not limited to, the costs to borne by the Agency pursuant to paragraph 3.d. above. Notwithstanding the foregoing, the Developer understands that the Agency may request, and the Developer shall consider, that the Developer enter into one or more separate written agreements pursuant to which the Developer would reimburse the Agency for specifically budgeted, identified and capped third party independent consultant costs which the Agency may desire to enter into based on staffmg unavailability for purposes of undertaking a comprehensive review the Project Concept Plan Study. 5. Oblieations of the Developer. During the Negotiation Period, the Developer shall proceed diligently and in good faith to perform the following: a. Consider the redevelopment of the Project Concept Plan, including without limitation, the selection of the design of improvement elements as appropriate for the Project Concept Plan in addition to any commercial or retail elements of the Project Concept Plan; and b. Review and provide the Project Concept Plan Study information described in Section 3 and submit an executed copy of the final form of the Project DDA to the Executive Director of the Agency on or before the end of the Negotiation Period (or such later date corresponding to an authorized extension of the Negotiation Period in accordance with Section 1); and c. Consult with the Agency and the Executive Director of the Agency on a regular basis and keep the Agency and the Executive Director of the Agency advised on the progress of the Developer in completing its obligations under this Agreement. 6. Aeencv Acknowledements. The Agency hereby acknowledges and agrees that no provision of this Agreement shall be deemed to be an offer by the Developer as an acceptance by the Developer of any offer or proposal from the Agency to purchase any interest in the Agency Property, in the Private Property or in, on or near the Arden Guthrie Site. Any studies undertaken by the Agency not relating to the Arden Guthrie Site shall be the sole responsibility of the Agency. 7. Oblieations of Aeencv. a. The Agency currently deems the disposition of the Agency Property, the acquisition of the Private Property and the redevelopment of the Arden Guthrie Site for a feasible Project Concept Plan to be appropriate, and the Developer appears to be well qualified to undertake the task of planning the details for the acquisition of the entire Arden Guthrie Site, including the sale by the Agency to the Developer of the Agency Property. b. During the Negotiation Period, and subject to the Agency's compliance with the California Community Redevelopment Law ("CRL") and the Owner Participation Rules of the IVDA pursuant to the Redevelopment Plan regarding the rights of owners and tenants within the Project Area, the Agency 4833-1897-6257.1 9 1/17/2007.11:16:55 AM shall negotiate exclusively with the Developer with respect to the Arden Guthrie Site during the Negotiation Period. The Agency shall not negotiate with any other person or entity regarding either the disposition of any of the Agency Property or the redevelopment of the Project Concept Plan on the Arden Guthrie Site. The tenn "negotiate," as used herein, shall be deemed to preclude the Agency from accepting any other offer or proposal from a third party to either acquire from the Agency any interest in any of the Agency Property (in whole or in part) or redevelop the Arden Guthrie Site, and from considering other redevelopment proposals for the Arden Guthrie Site with third persons or entities; provided, however, any person may submit to the Agency and the Agency may consider any proposal for the disposition and/or redevelopment of any lands adjacent to the Arden Guthrie Site. Nothing contained herein shall be interpreted to prevent or limit the requirement and the ability of the Agency to negotiate with and obtain property interests in any real property or business interest located within the Arden Guthrie Site when such third party is exercising their rights pursuant to the Owner Participation Rules of the NDA as required under the CRL. c. During the Negotiation Period, the Agency may in its sole discretion, elect to acquire any Private Property as the Agency may deem appropriate on such terms and conditions as the Agency may approve. Nothing herein shall be deemed to be a commitment or understanding by the Agency to the Developer to acquire any such Private Property as may be offered for sale or which otherwise may become available for acquisition during the Negotiation Period and the Agency shall not be deemed to have appropriated or made available any funds therefore. d. Nothing in this Agreement shall bind the Agency to, or be construed to be a commitment by the Agency to, exercise its power to acquire property pursuant to Health and Safety Code section 33391 or to exercise its power of eminent domain with regard to any particular parcel or parcels comprising the Arden Guthrie Site; provided, however, that there has been no change in either State or federal law that would either preclude the exercise of the power of eminent domain by the Agency or seek to impose any financial penalty upon the Agency or the City in the event either the Agency or the City were to exercise the power of eminent domain to acquire any of the Private Property. As may be further provided in the Project DDA, the Agency may be requested, however, to consider in good faith, consistent with any applicable provision of law, any request from the Developer that the Agency exercise its power of eminent domain with regard to any particular parcel or parcels of the Private Property comprising the Arden Guthrie Site. In no event shall the Agency have any liability to the Developer for the Agency's failure to act upon the Developer's request, nor shall the Agency exercise its power of eminent domain unless and until the governing board of the Agency (the "Agency's Board") has duly considered the evidence before it as to whether the affected property is necessary for a public use under applicable federal and State laws and, in the exercise of the sole and absolute discretion of the Agency Board, has adopted a resolution of necessity after a duly noticed public hearing and has otherwise complied with the provisions of the California Eminent Domain Law, Code of Civil Procedure Section 1230.010, etgg. The Project DDA shall additionally set forth the financial obligations of the Developer for the payment of the costs of such eminent domain proceedings, including appraisal costs, expert witness fees and legal expenses, whether through the purchase price of the property so acquired or otherwise. e. Notwithstanding any other provision of this Agreement, during the Negotiation Period, the Agency shall not be precluded from furnishing, to persons or entities unrelated to the Developer, information in the possession of the Agency relating to the redevelopment of any other land owned or controlled by the Agency in close proximity to the Arden Guthrie Site except for the Arden Guthrie Site. Consideration of the redevelopment of the Project Area under the terms of the Redevelopment Plan shall 4833-1897-6257,1 10 1117/2007-11 :16:55 AM remain in the sole and exclusive purview of the Agency. The Agency may also provide any other information in its possession that would customarily be furnished to persons requesting information from the Agency concerning its activities, goals and matters of a similar nature, or as required by law to be disclosed upon request. 8. Ae:encv Cooneration. During the Negotiation Period, the Agency shall: a. At the request of Developer, use its best efforts to assemble written materials and documents relating to the Arden Guthrie Site that are in the possession of the Agency. b. Use its best efforts to provide appropriate comment to the Developer with respect to one or more conceptual development plans, as may be proposed by the Developer for the Project Concept Plan, and the redevelopment of the Arden Guthrie Site, including, but not limited to, conceptual plans or studies of the vacation, realigmuent or abandomuent of public property, rights-of-way and facilities, the installation and improvement of public improvements and environmental evaluation of the Project Concept Plan. c. Use its best efforts to provide the Developer with limited access to those portions of the Agency Property or the Private Property after it has been acquired by the Agency during the Negotiation Period for the purpose of conducting customary due diligence investigations thereon, including en,iromuental investigations of the subsurface or any sttucture thereon. These rights will be subject to the terms and conditions of a separate environmental investigation and inspection license agreement to be agreed upon by the Agency and the Developer, at some later date, if applicable. d. Use its best efforts to provide the Developer with information or copIes of studies performed or to be performed relative to the Project Area. e. Use its best efforts to formalize the Project DDA with the Developer, wherein the Agency agrees to transfer to the Developer the Agency Property and to acquire and transfer to the Developer the Private Property for such consideration to be agreed upon, including the development of the Project Concept Plan. f. Use its best efforts to assist the Developer in obtaining the entitlements necessary to develop the Project Concept Plan on the Arden Guthrie Site but without the incurring of any independent consultant or legal expenses. g. Use its best efforts without the incurring of any consultant or legal expenses to utilize Agency Staff personnel to expedite compliance under CEQA for the Project Concept Plan in addition to the CEQA compliance for any zoning changes, adoption of a specific plan (the "Specific Plan") if required by the Developer, General Plan amendments and all other entitlements necessary for the development of the Project Concept Plan on the Arden Guthrie Site, suggested by the Developer in its proposed conceptual development plan, referred to in Section 3.e.(A) and (B) above, or at any other time during the Negotiation Period. 4833-]897-6257.1 11 1117/2007-11 :16:55 AM 9. Ne!!otiation of Proiect DDA. During the Negotiation Period, the Agency and the Developer shall negotiate diligently and in good faith to prepare and attempt to enter into a Project DDA. Both of the parties shall exercise best efforts to complete discussions relating to the fmal terms and conditions of the Project DDA and such other matters, as may be mutually acceptable to the parties for the redevelopment ofthe Project Concept Plan on the Arden Guthrie Site, prior to the expiration of the Negotiation Period, but neither party, after such diligent and good faith negotiations, shall be bound by any term or provision of this Agreement to complete any such negotiations or to execute any fmal Project DDA. 10. Consideration for this Aneement aod Reservation of Ri!!hts. In consideration for the Agency's entering into this Agreement, the Developer will undertake its obligations under this Agreement and provide the Agency with copies of all studies and reports and other non-confidential or non-attorney-client privileged information generated by the Developer or its consultants regarding the Project Concept Plan or the Arden Guthrie Site. Notwithstanding the foregoing, the Developer shall provide all information required under Section 3.e. in its entirety as set forth therein and in accordance with Section I.e. and Section 12. All information as may be provided by the Developer to the Agency which is of a confidential nature shall be subject to the provisions of said Section I.e. and Section 12 which provides that the Agency agrees to maintain the confidentiality of any fmancial and/or proprietary information of the Developer that is exempt from disclosure as a Public Record pursuant to Government Code Sections 6254.15 and 6255. The parties agree that, if this Agreement terminates for any reason, the Agency fails to extend the Negotiation Period or the Project DDA is not fmally approved by the Agency for any reason, neither party shall be under any further obligation to the other party regarding the disposition, acquisition, reuse, redevelopment or development of the Project Concept Plan or the Arden Guthrie Site. II. Planoio!! and Desim: Related Acknowled!!ments of the Parties. Certain development standards and design controls for the Project Concept Plan may be established between the Developer and the Agency in negotiation of, or in the fmal form of, the Project DDA, but it is understood by both parties that the Project Concept Plan and the redevelopment of the Arden Guthrie Site must conform to the City's development, design and architectural standards. The Agency Staff shall use best efforts to cooperate with the Developer's professional associates in providing information and assistance in connection with the Developerls preparation of drawings, plans and specifications. Nothing in this Agreement shall be considered approval of any plans or specifications for the Project Concept Plan or the Arden Guthrie Site, itself, by either the Agency or the City. 12. Developer Financial Disclosures. The Developer acknowledges that it may be requested to make certain confidential financial disclosures to the Agency, its staff or legal counsel, as part of the financial due diligence investigations of the Agency relating to the potential disposition of the Agency Property to the Developer. The parties recognize that such financial disclosures may contain sensitive information relating to other business transactions of the Developer, that the disclosure of such information to third parties could impose commercially unreasonable and/or anti-competitive burdens on the Developer and, correspondingly, diminish the value or fiscal benefit that may accrue to the Agency upon the disposition of the Agency 4833-1897-6257.1 12 1/17/2007-11 :16:55 AM Property to the Developer, if the terms for such disposition are mutually agreed upon. Accordingly, the Agency agrees to maintain the confidentiality of any of the Developer's financial and/or proprietary information that is exempt from disclosure as a Public Record pursuant to Government Code Sections 6254.15 and 6255. In the event that the Agency refuses to disclose records at the request of Developer, the Developer shall indemnify, defend (subject to the approval of the Developer's selected legal counsel by the Agency Counsel), and hold harmless, including payment of attorneys' fees, the City and the Agency from any action, lawsuit or other proceeding initiated to obtain access to documents that may be determined to be exempt from disclosure pursuant to the applicable provisions of the Public Records Act. For purposes of this Section, "Attorneys' fees" shall include, without limitation, the costs, salary and expenses of the City Attorney and members of his office in representing the City and/or the Agency and the Agency Counsel. 13. Nondiscrimination. The Developer shall not discriminate against nor segregate any person, or group of persons on account of race, color, creed, religion, sex, marital status, handicap, national origin, sexual orientation, or ancestry in undertaking its obligations under this Agreement. 14. Compliance with Law. The Developer acknowledges that the Project DDA, if mutually agreeable terms are established, may require the Developer (among other things) to carry out the construction of certain improvements in confonnity with all applicable laws, including all applicable planning and zoning laws, enviromnental planning and safety laws and federal and state labor and wage laws that will require the payment of the prevailing wage rates all as shall be further set forth in the Project DDA. 15. RC<luired Approvals. No Project DDA between the parties shall have any force or effect, nor shall the Agency be deemed to be a party to any agreement for the disposition of any real or personal property to the Developer, until the terms and conditions of the Project DDA are considered and approved by the governing body of the Agency, following the conclusion of a noticed public hearing, as required by the CRL. 16. Press Releases. The Developer agrees to discuss any press releases it may propose relating to the Arden Guthrie Site with the Executive Director of the Agency or his/her designee, prior to publication, to assure accuracy and consistency of the information. The Agency shall not issue press releases or make public disclosure of information concerning the Arden Guthrie Site or the Developer's proposals (unless the Developer has consented thereto) except as may be required by applicable law. 17. Notices. All notices required hereunder shall be presented in person or by fax and by First Class certified or registered United States mail with return receipt requested. Notice shall be deemed confirmed by United States mail effective the second (2"') business day after deposit with the United States Postal Service. Notice by personal service shall be deemed effective upon delivery. Any party may change their address 4833-1897-6257.] 13 1117/2007-1 Ll6:55 AM for receipt of notice by notifying the other parties in writing. Both parties shall strive to deliver notice to the Co-Developer but failure to deliver notice or the failure to receive notice by the Co-Developer shall not in any manner affect the validity of notice given from one party to the other. TO DEVELOPER: Home Depot U.S.A., Inc. Attn.: Ann K. Jerhoff, Director-Real Estate Law 3800 West Chapman Avenue Orange, California 92868 Tel: (714) 940-3620/Fax: (714) 940-3632 Home Depot U.S.A., Inc. Attn.: Beverly Metz, Real Estate Manager 3800 West Chapman Avenue Orange, California 92868 Tel: (714) 940-3569/Fax: (714) 940-3579 and Robert H. Nagle Nagle Law Group, P.C. 4530 E Shea Blvd., Ste 140 Phoenix, Arizona 85028-6065 Tel: (602) 595-6951/Fax: (602) 445-9302 TO CO-DEVELOPER: (informational purposes only) Gerald W. Beard Realty, Inc. Attn.: Mr. Scott C. Beard, President 285 West Rialto Avenue Rialto, California 92376 Tel: (909) 875-2210 Ex!. 106/Fax: (909) 879-7876 and Mr. Mark Sandoval III North Fifth Street, Suite 8 Redlands, California 92373 Tel: (909) 335-0330/Fax: (909) 335-7127 TO AGENCY: Redevelopment Agency of the City of San Bernardino Attn.: Maggie Pacheco, Executive Director 201 North "E" Street, Suite 301 San Bernardino, California 92401 Tel: (909) 663-1 044/Fax: (909) 663-2294 18. Acceptance of Al!reement bv the Developer. The Developer shall acknowledge its acceptance of this Agreement by delivering three (3) counterpart executed copies of this Agreement signed by an authorized party on behalf of the Developer. The delivery by the Developer to the Agency of the executed counterpart copies of this Agreement shall be completed either prior to or within thirty (30) calendar days following the approval of this Agreement 4833-1897-6257.1 14 1/19/2007.2:07:52 PM by the Agency's Board or thereafter this Agreement shall have no further force and effect with respect to any party. 19. Authoritv. This Agreement may be executed in counterparts, and when fully executed by the parties, each such counterpart shall be deemed to be one original document. Each signatory to this Agreement represents and warrants that he or she has the authority to execute this Agreement on behalf of the principal whom he or she purports to represent. 20. Optional Termination hv Developer. Provided the Developer is not in default, the Developer may, in its sole and absolute discretion, exercise an election to suspend the Project Concept Plan Study, and thereafter this Agreement shall tenninate and the parties shall be mutually released from any further obligations hereunder; provided, however, that the Developer gives thirty (30) calendar days' prior written notice to the Agency and has paid all amounts of the Agency expenses that were incurred by the Agency in reliance upon any separate written agreement or agreements with the Developer wherein the Developer has agreed to reimburse the Agency for specifically budgeted and identified third party independent consultants, which the Agency has sought to retain due to the unavailability of staff to review the Project Concept Plan. Provided the Agency is not in default, the Agency may in its sole and absolute discretion exercise an election to suspend the Project Concept Plan Study, and this Agreement shall tenninate and the pa.-ties shall be mutually released from any further obligation hereunder thirty (30) days following written notice by the Agency to the Developer. 21. Defaults and Breach - General. a. Failure or delay by any party to perform any material term or provision of this Agreement shall constitute a default under this Agreement; provided, however, that if the party who is otherwise claimed to be in default by the other party cures, corrects or remedies the alleged default within thirty (30) calendar days after receipt of written notice specifYing such default such party shall not be deemed to be in default hereunder. b Any failure or delay by a party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with such a default. c. In the event that a default of any party may remain uncured for more than thirty (30) calendar days following written notice, as provided above, a "breach" shall be deemed to have occurred unless such party who is alleged to be in default is in the process of diligently prosecuting the cure of such default, such cure was commenced immediately upon receipt of notice as above set forth and such breach cannot be cured within said thirty (30) calendar days even though the cure was commenced in a timely manner. d. In the event of a breach, the party who is not in default shall be entitled to seek any other appropriate remedy by initiating legal proceedings. The successful party in any such legal proceeding shall be entitled to recover its reasonable attorneys' fees as an element of its damages, either as part of such legal proceedings or in a separate legal action to recover such attorneys' fees. Attorneys' fees shall 4833-]897-6257.1 15 1/17/2007,11:16:55 AM include, without limitation, the costs, and expenses of the City Attorney and members of his office in enforcing this Agreement. e. In the event that a breach has occurred under this Section 21, the party who is not then in default may terminate this Agreement by serving the other party with a written notice of termination, and thereafter the Agreement shall terminate thirty (30) calendar days following the date of service of the notice of termination on the other party. 22. Governinl! Law: Venue. The parties hereto acknowledge that this Agreement has been negotiated and entered into in the State of California. The parties hereto expressly agree that this Agreement shall be governed by, interpreted under, and construed and enforced in accordance with the laws of the State of California. Further, the parties to this Agreement hereby agree that any legal actions arising from this Agreement shall be filed in California Superior Court, in the Court of San Bernardino, Central District. 23. Partial Invaliditv. If any term, provision or portion of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision or portion thereof to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each such term and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. 24. No Intent to Create Third Party Beneficiaries. The parties intend that the rights and obligations under this Agreement shall benefit and burden only the parties hereto, and do not intend to create any rights in, or right of action to or for the use or benefit of any third party, including any governmental agency, who is not one of the parties to this Agreement. The Co-Developer shall under no circumstances be deemed to be a third party beneficiary to any of the rights or provisions contained in this Agreement. 25 . Waivers. No waiver of any breach of any covenant or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof, or of any other covenant or provision herein contained. No extension of the time for performance of any obligation or act to be performed herein shall be deemed to be an extension of the time for performance of any other obligation or act to be performed under this Agreement. 26. Entire Al!feement. This Agreement (including all Exhibits attached hereto) is the fmal expression of, and contains the entire agreement between, the parties with respect to the subject matter hereof and supersedes all prior understandings with respect thereto. This Agreement may not be modified, changed, supplemented or terminated, nor may any obligations hereunder be waived, except by written instrument signed by the party to be charged or by its agent duly authorized in writing or as otherwise expressly permitted herein. 4833-1897-6257.1 16 1/17/2007-11:16:55 AM This Agreement may be executed in one or more counterparts, each of which shall be an original, and all of which together shall constitute a single instrument. 27. Time oCEssence. Except as provided in Section 20 of this Agreement, time is strictly of the essence with respect to each and every term, condition, obligation and provision hereof and that failure to timely perform any of the terms, conditions, obligations or provisions hereof by any party shall constitute a default under this Agreement by the party so failing to perform subject to such failure to timely perform being waived by the non-defaulting party at their sole option and discretion. 28. Constrnction. Headings at the beginning of each section, paragraph and subparagraph are solely for the convenience of the parties and are not a part of this Agreement. Whenever required by the context of this Agreement, the singular shall include the plural and the masculine shall include the feminine and vice versa. This Agreement shall not be construed as ifit had been prepared by one of the parties, but rather as if both parties had prepared the same. Unless otherwise indicated, all references to Sections are to this Agreement. All Exhibits referred to in this Agreement are attached hereto and incorporated herein by this reference. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written. DEVELOPER Home Depot U.S.A., Inc., a Delaware corporation By: Name: Its: {k.~ n . Jerhoff ec . AGENCY Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic By '-)/)12.//11' Maggie pachlco, Executive Director Approved as to Form and Legal Content: \../~-~ Agency Counsel 4833-1897-6257.1 17 P:\Agendas\Agenda Alt.chmcnt<lAgrml<_Amend 2006\1 1_20_06 I-lome Depot - Final Arden Guthrie ERN doc EXHmIT "A" Map of Arden Guthrie Site [See Attached 1 Page] 4833-1897-6257.] 18 1/17/2007-11:16:55 AM anuaA'f UapJ'f " c V ~ " ~ . > M '" " " ~ ~ . a . e " a :g 0 u .;; " < '" E " P . ,~ ~ " ~ ~ > . g 0 0 " " ~ c ~ U ~ " . " ~ ~ 0 "' ~ . . . i 0 € . ;3 0 , 0 , H 0 Z ~ "' > 'r'" Li! 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